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Why ICC Judges Rejected Bemba’s Compensation Claim

International Criminal Court (ICC) judges rejected Jean-Pierre Bemba’s compensation claim against the court after they determined that there was no “grave and manifest miscarriage of justice” during Bemba’s 10-year detention and trial that resulted in an acquittal. The judges also ruled that the ICC was not responsible for the alleged damage to Bemba’s property that was seized at the court’s request.

In the compensation claim filed in March 2019, Bemba asked judges to order that he should be awarded a total of €68.8 million (US$ 77.7 million), comprised of €12 million for the period of his detention, €10 million in aggravated damages, €4.2 million for his legal costs, and €42.4 million for damage to his property.

In the ruling issued on May 18, 2020, Pre-Trial Chamber II judges rejected Bemba’s claim but said he could seek redress elsewhere for the alleged mismanagement of his assets. The chamber is composed of judges Antoine Kesia-Mbe Mindua (Presiding), Tomoko Akane, and Rosario Salvatore Aitala.

The “Grave and Manifest Miscarriage of Justice” Threshold

Article 85(3) of the Rome Statute, which Bemba pegged his claim on, states:

In exceptional circumstances, where the court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation … according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason.

The chamber determined that Bemba failed to establish that he suffered a grave and manifest miscarriage of justice. It said most grievances he raised were deliberated during the trial and the appeal, and compensation proceedings should not constitute an opportunity to reopen debate on matters that had already been addressed.

While Bemba submitted that the appeals judgement found many errors at trial stage, Pre-Trial Chamber II found that the Appeals Chamber never referred to a miscarriage of justice, less so a grave and manifest one. Moreover, it said that by acquitting Bemba, the Appeals Chamber prevented any miscarriage of justice.

The only submission in Bemba’s claim that Pre-Trial Chamber II said was not addressed at the appeals stage was the argument that his right to an expeditious trial was violated, as he was incarcerated for 10 years before his acquittal and release.

However, the chamber noted that the threshold set by Article 85(3) is particularly high, and not every flaw in proceedings, or even violation of fair trial rights, amounts to a “grave and manifest miscarriage of justice.”  To meet the threshold, the violation must be so serious and exceptional, the chamber said, citing judges in the Mathieu Ngudjolo compensation claim [pdf], who mentioned the conviction of an innocent person and wrong decisions on the admissibility of evidence as scenarios that could meet the threshold.

For its part, Pre-Trial Chamber II said grave instances could include demonstrated or substantiated suspicion of corruption and lack of impartiality by judges or other examples of gross negligence in the administration of justice to the detriment of the suspect or the accused. It said the scenarios that could meet the threshold “are situations which should be regarded as truly exceptional; as such, they share the feature of going beyond typical errors, whether of fact or of law, suitable to be addressed and remedied during appellate proceedings.”

Responsibility to Maintain Seized Property

Following an ICC request, in May 2008 authorities froze Bemba’s bank accounts in Congo, Portugal, and Belgium. Bank accounts in Belgium and Portugal in his wife’s name were frozen too. A family home in Brussels, various properties and parcels of land in Congo, and a villa and a boat in Portugal were also seized. The defense says additional property was seized, apparently without judicial order. It included two villas, three motor vehicles, and a Boeing 727-100 aircraft at Faro airport in Portugal; a river cruiser, six aircraft, and several vehicles in Congo.

Bemba contends that the court, particularly the Registry, retained responsibility over the assets once they were seized or frozen. However, the Registry said that responsibility rested with states that implemented the freezing orders – a view the chamber agreed with. The chamber determined that the Registry adequately discharged its obligations as a channel of communication between the court and the three states requested to seize the property.

In the ruling, Pre-Trial Chamber II added that it does not have the mandate to adjudicate on damage to Bemba’s assets resulting from the conduct of the three states. It said the wording and drafting history of Article 85(3) make it apparent that it was never meant to provide a remedy for damages of an economic and financial nature that do not result from a grave and manifest miscarriage of justice.

The chamber ruled that it was also beyond its jurisdiction to decide whether those states could be made party to Bemba’s compensation proceedings. In submissions last year, the defense asked judges to make the governments of Belgium, the DRC, and Portugal party to the compensation proceedings. It stated that this was because it had become clear that the position of the Registry and the prosecution was that responsibility for the economic loss arising out of freezing Bemba’s property lay not with the ICC, but with the three states.

The judges stated that Bemba has the right to pursue remedies through other avenues that might be open to him. Last year, Bemba’s lawyers proposed that as an alternative to the ICC issuing an order for compensation, his claim for financial loss arising from destruction and damage to his property could be submitted to binding arbitration under the rules of the United Nations Commission on International Trade Law (UNCITRAL). The defense also argued that the ICC has no immunity from claims under private law and that it could be sued for those losses in domestic jurisdictions in Portugal, Belgium, or Congo.